A thinning blue line?

18 Aug 08

Growing up in a minority ethnic family in the 1970s and 1980s, I was well aware of some of the more turbulent moments in police history (particularly in the context of sensitive public order situations). Nonetheless, my parents and I never doubted that there was something inherently benign and civil libertarian in the British policing tradition.

Only later, as a student of law at the London School of Economics – where Professor Robert Reiner is still the greatest scholar of police history and policy – did I see that benign, pro-democracy policing hadn’t just sprung from a gentle national character. Instead, it owed a great deal to the wisdom of policing pioneers and to the history and traditions of the service.

While funded by the executive, the Bow Street Runners were affiliated with the magistrates, not the Government of the day. Thus from the very inception of the police service, it tended towards the Rule of Law, not the ruling Government or party.

Professor Reiner’s ‘The British Policing Tradition: Model or Myth’ (1992) gives much credit to visionary Home Secretary Peel and to the first two Commissioners of the Metropolis – Rowan and Mayne. I too support the traditional approach of ‘policing by consent’, and the Peel principles of non-partisanship and accountability to the Rule of Law.

Pressures on the increase

More recently, as law and order has moved up the political agenda, so the pressures on the modern police service and its independence have increased. Rarely does a day pass by without a new proposal for what seems like political rather than legal ‘accountability’ on the one hand, or a serving officer advocating legislative action on the other. Yet umpteen new criminal offences, police powers and other apparently broad laws from Parliament have been matched by targets, indicators and circulars courtesy of the Government.

What, then, is the role of policing in a democratic constitution? I believe that, in the 21st Century, policing should serve the Rule of Law rather than the interests of the executive. It’s perfectly possible for professional police discretion and fundamental rights and freedoms to march hand-in-hand.

Peel’s Metropolitan Police Act of 1829, Reiner reminds us, was met with some hostility and a fear that policing might become an agency of the Government. Thus, Peel and the early Commissioners deliberately insulated the service from direct central and local Government control. They characterised the police as autonomous professional agents of the law, not the Government. This was reinforced by regulations that restricted political involvement.

If accountability was not to politics, it was to the law. This law manifested itself in the Act of Parliament establishing the force, the constraints on police powers set by Parliament and the Courts and the structuring of police discretion – relating to stopping, arresting and investigating suspects, etc – by Commissioner rules rather than Home Office guidance.

Looking back at these roots of modern policing, it seems to me that they sprang not from mere historical accident, but out of a profound understanding on the part of Peel, Rowan and Mayne. A profound understanding not just of the essence of consent-based policing but of the nature of democracy itself.

Democracy is a piece of machinery with both fixed and moving parts. The moving parts represent the elected limbs of a constitution – executive and legislature, at central, regional and local levels. They move and change with the public will, both generating and reflecting the heat and light of partisan ideas and debate.

The fixed parts are just as important. These represent those elements of democracy upholding the enduring values and functions that cannot be ‘de-selected’ without compromising the constitution itself.

Distant, ‘unelected’ Judiciary

Populist politicians and even certain police officers sometimes vent frustration at a seemingly distant, ‘unelected’ Judiciary and decisions taken that appear contrary to the public mood. At such moments, the more sensible bite their tongues. They should do so with an eye to what life would be like in a society of elected or otherwise politically affiliated Judges. What hope there for opposition politicians and a whole range of vulnerable people when ‘the mob’ assembles at the Court door?

If democracy is to flourish for more than a brief moment, fundamental rights and freedoms – and the Rule of Law – must be protected by independent professionals. Not just the right to free and fair elections but interconnected rights to speech, protest, privacy, conscience, association, equal treatment and fair rights.

It’s easy to see politicians and Judges as the moving and fixed parts of the machine respectively. However, the constitutional positioning of the police service is equally important. In contrast with other systems, the British policing tradition places the service under the Rule of Law rather than the political pillars of the constitution.

This is not to confuse police and Judicial functions. I was never a fan of Tony Blair’s ‘summary justice’ which would give investigative, prosecutorial, trial Judge, Jury and sentencing functions to a police officer on the spot. Nor can the relationship between investigators and prosecutors on the one hand, and the Judiciary on the other, be too cosy in an adversarial, fair trial system. These professionals have something important in common – service to the Rule of Law which, in turn, requires ruthless political non-partisanship and freedom from interference.

More complicated still is the fact that, in a system of Parliamentary sovereignty, ultimately it’s the elected political legislators who ‘make the law’ in what the Lord Chancellor has referred to as ‘the High Court of Parliament’. That is, of course, quite right.

However, the relevant relationship here is between Parliament – which frames laws – and professional constables, who are both bound by them and charged with enforcement. In a democracy of checks and balances, this is not a relationship in which the executive should have too great a role, aside from being the initiator of legislation.

Non-partisan police service

There are huge practical benefits to such an approach. Regardless of race, class or political affiliation, it’s far easier for the whole community to feel served and protected by a demonstrably non-partisan police service. This is particularly important in those crimes where race may be a factor or in tense public order situations during times of strife.

Policing thus provides comfort and certainty in changing and difficult times. Majority and minority communities may feel periodic anger with Government and opposition parties of the day, but can develop long-term trust in a service that applies the law of the land with an even hand, sensitive only to the most effective use of discretion and resources in particular situations. Indeed, one might argue that the very essence of democracy requires a critical public to grow weary and sceptical of elected Governments while maintaining faith in permanent institutions such as the police.

Further, the ambitions of public tranquillity and law enforcement require that police officers – much like Judges – serve and protect minorities, however unpopular (or criminal) they may be, alongside the much-mythologised hard-working masses. A certain insulation from the swings of public opinion as measured by headlines and opinion polls is surely as important as sensitivity to the needs of individual victims at the community level?

Recent decades have brought profound challenges to the independence and non-partisanship envisaged by Peel. The modern ‘Law and Order Arms Race’ began in 1993, when the two largest political parties vied to be the toughest on crime – with its wider causes relegated to the status of sub-clause.

With the advent of the Labour Government in 1997, law and order policy was further elevated in the ladder of political priority. However, in hindsight I wonder whether the strategy of crafting so many broad and creative new police powers wasn’t as dangerous for the service as it was for lawyers and libertarians.

Curing all of society’s ills

With Blair came the raised expectations of a criminal justice system that might cure all of society’s ills (including crime, nuisance and irritation), let alone substance abuse, truancy and other social problems below the surface.

The quid pro quo for law and order’s higher profile – as well as the panoply of new powers, orders and offences that made the lawyers’ blood boil – was increased political interference. Home Secretaries both give and taketh away. The price for all of those blank cheques on police powers was a high one in terms of passing the political buck for social problems and the invidious operational encroachment of targets and Key Performance Indicators. In short, the traditional boundaries of clear and proportionate laws from Parliament were replaced by kilometres of executive red tape.

Some – but not all – of the most senior officers in the land seemed to embrace the new increased political and media attention, not merely as respondents to heated policy debates but, often, as principal protagonists.

In the wake of 7/7, the public placed their hopes and fears in the hands of the police. ACPO responded with a Press Release containing an ambitious – if not greedy – ‘shopping list’ of new police powers, with calls for a 90-day, pre-charge detention at its summit. As luck would have it, the former Prime Minister was happy to reach for the blank cheque again. Was this any way to press for greater police powers in a democracy?

Strong and varied viewpoints

Emanating as they do from the citizenry – every bit as Peel intended – I’ve no doubt that serving officers must have strong, varied and contradictory views about all manner of Home Affairs subjects and other political debates.

However, there would seem to be real and unresolved questions about the parameters and methods for the appropriate expression of those views if non-partisanship is still to be maintained. Further, if – contrary to my own views – it’s considered sensible and ethical for officers to air their views in such a public manner, questions then arise about which views are allowed to be aired.

The debate focusing on extended pre-charge detention for terror suspects is a good case in point. There appeared to be a range of policing opinion on the 42-day proposals across both serving and retired force personnel. The ‘official’ views of both the Metropolitan Police and ACPO became so politically and constitutionally significant that it must be reasonable to ask about the process of internal consultation and deliberation which led to the final position taken.

The Metropolitan Police example is perhaps both more straightforward and sensitive. We do know that, from 2005 onwards, Commissioner Sir Ian Blair has made little secret of his own views in favour of further extensions to the period during which terror suspects can be held without charge.

Importantly, the Information Commissioner has confirmed that the Freedom of Information Act doesn’t apply to ACPO. However, the Association is funded by a Home Office grant, contributions from each of the police authorities, membership subscriptions and the proceeds from its annual exhibition. It publishes advice and guidance on a large number of policing issues and contributes ‘decisions’ and ‘comments’ to a wide range of contemporary public debates.

In light of this, and its own stated aim to be the ‘principal voice’ in the British public’s mind, I wonder whether it might be time for an examination of the ‘proper’ ACPO role in our system and culture of policing?

Is ACPO an external reference group for Home Office ministers? Is it a professional association protecting the interests of senior officers? Is it a public authority which issues guidance and Best Practice advice to local forces? Is it a national policing agency? Is it a campaigning pressure group arguing for greater police powers? It might well be any of these, but should it be all?

When – if ever – did Parliament have the opportunity to debate, examine or reform the role of ACPO, one of the most powerful publicly-funded bodies in Britain?

The doctrine of independence

Legislative and political developments simultaneously undermine the doctrine of constabulary independence. The Police Reform Act 2002 created Home Secretarial powers to call for a chief police officer’s suspension, while the 2006 Police and Justice Act increased the same individual’s ability to intervene in ‘failing police forces’ without any objective assessment by the Inspector of Constabulary.

Accountability to the law doesn’t mean insensitivity to community priorities and needs. It merely places judgement and discretion in the hands of officers as individual policing professionals, even if often working in concert under the co-ordination of a senior officer or chief constable.

Jan Berry made this point most persuasively in an interview following her recent retirement as chairman of the Police Federation. “We have been policing to meet targets rather than really understanding what it is the public needs,” said Berry. “Common sense is being eroded. There are people in the Civil Service who seem to want to break the ‘office’ of constable such that they can better dictate what officers do.”

Moratorium on police powers

As an outsider and, I hope, critical friend of British policing, might I make some practical suggestions? A clearer, sharper statute book, accessible to constable and citizen alike, is the correct approach to limiting police discretion under the law. If a great deal of written guidance is needed for the exercise of a power, the statutory discretion itself is either too vague or too broad.

There should be a moratorium on further, additional police powers, at least until the existing, bulging compendium may be properly evaluated and rationalised. In addition, calls for further central and local electoral accountability must be resisted in favour of alternative, independent mechanisms for ensuring good governance, financial probity and so on – and enhancing the professional skills and sensitivity of the office of constable.

There should be a proper police and public debate about the nature of non-partisanship in the current climate, with a view to setting ethical guidelines for police officers of all ranks who may be called upon – or tempted – to speak publicly on matters of contested opinion rather than hard fact. I can sympathise with chief constables who might prefer the microphone to the truncheon, and see why ministers love the feel of a bullet-proof vest.

I can only ask those with senior roles in policing and politics to beware the very real dangers of continued constitutional cross-dressing. Surely it must be the hallmark of any democracy – let alone the oldest on Earth – that those with guns and uniforms stay out of politics, while for their part the politicians refrain from interfering in law enforcement?

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